Lawmakers are divided on response

The Supreme Judicial Court's decision approving gay marriage threw Beacon Hill into a frenzy yesterday, with Governor Mitt Romney and Democratic leaders in the Legislature considering a flurry of options -- ranging from fully backing the court's ruling, to advancing a constitutional amendment banning gay marriage, to something in between.

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Romney reiterated his opposition to gay marriage, declaring he had "3,000 years of recorded history" on his side, while still offering support for a handful of domestic partner benefits to gay couples. The Senate's Democratic leader, meanwhile, said the court left the Legislature little choice but to accept gay marriage.

"This decision is very clear," said Senate President Robert E. Travaglini, an East Boston Democrat who has previously said he opposes gay marriage. "It's somewhat ambiguous [as to the Legislature's role]. They're giving us 180 days to take action, but we're not sure that any action that we take is going to affect the decision of the court."

House Speaker Thomas M. Finneran, a strong opponent of gay marriage and a social conservative who is a key player in the debate, declined to comment. Like Romney, he has endorsed a proposed constitutional amendment that would establish marriage solely as the union of a man and a woman, effectively outlawing gay marriage.

But the amendment couldn't be finalized until 2006, because it has to be approved by the Legislature in two consecutive sessions, and then sent to the voters for ratification. That could mean more than two years of state-sanctioned same-sex marriages, regardless of how lawmakers view the proposition.

Romney said he would work on two tracks, pushing to amend the constitution to ban gay marriage while also working to provide "basic civil rights and appropriate benefits to same-sex couples and other nontraditional relationships." He said he would support health-care benefits and inheritance rights, but said he could not list the full slate of rights he is comfortable with granting.

"I agree with 3,000 years of recorded history. I disagree with the Supreme Judicial Court of Massachusetts," Romney said. "But I can tell you that over the next several months that I will work with legislative leadership, and other legislators, and community leaders to decide what kind of statute we can fashion which is consistent with the law."

At the same time, though, he said he would abide by the ruling. "We obviously have to follow the law as provided by the Supreme Judicial Court, even if we don't agree with it," Romney said.

As they pored over the decision, lawmakers and staffers tried to find some wiggle room in the court's instructions. One Romney aide said that because the decision was so close, the court may be willing to accept something short of gay marriage, at least temporarily.

As part of the court's opinion, the justices ruled that their order be delayed "for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion." In an apparent reference to their resolve, the justices cited a 1983 case in which the SJC ordered the cleanup of county jails, and said a lack of funds was not an adequate excuse for the state to ignore its ruling.

To the plaintiffs and other legal observers, the wording of the opinion suggests a firmness of purpose on the part of the SJC. Mary Bonauto, the lawyer who argued the case for the gay couples before the court, dismissed any notion that the Legislature or Romney could water down the SJC's decision and establish an acceptable framework that falls short of gay marriage.

"There's no suggestion [in the opinion] that a parallel system would be adequate," she said. "I can't see anything that can be done. Frankly the real option for the Legislature is to clean up the statutes."

Some lawmakers celebrated the decision, calling it an important statement on behalf of civil rights, and said they would back legislation to make it easier for gay couples to obtain marriage licenses. Several liberal House and Senate members said they saw no need to negotiate with Romney about anything short of gay marriage.

"This is a new day," said state Representative Elizabeth A. Malia, a Jamaica Plain Democrat.

If the Legislature approves domestic partnership benefits or civil unions but opposes gay marriage, the issue will almost certainly wind up before the SJC again. The court would then have to decide whether to order marriage licenses to be issued in the face of legislative opposition.

On the other hand, the forces opposed to gay marriage face a lengthy battle to change the constitution. The members of the House and Senate who meet jointly as a constitutional convention each session have before them a proposed amendment that would outlaw gay marriage. The joint session met last week, but did not take up the measure, and instead rescheduled the convention for Feb. 11.

It is not clear which side of the issue has the majority among the 200 House and Senate members. Both sides said the ruling would bolster support for their causes in the Legislature, but both sides also concede that any vote in the Legislature would be close.

State Representative Philip Travis, the lead sponsor of the amendment to ban gay marriage, said the decision would make it easier to attract a majority for his amendment, since the court has effectively removed civil unions as an option.

Travis added that if the Legislature doesn't act within the 180-day window, he doesn't think the court can force clerks to issue marriage licenses to gay couples -- an assertion that's sharply disputed by the winning side in the case.

"When we pass 180 days, what are you going to do to the Legislature?" said Travis, a Rehoboth Democrat. "With all due respect to the Supreme Court . . . you've given us a decision and given it to us to enforce. Therefore, if we don't enforce it, there is no remedy under the law of Massachusetts."

Public opinion polls show an evenly divided Massachusetts electorate. A Globe poll taken in early April showed 50 percent of registered voters were in favor of gay marriage, with 44 percent opposed.

Secretary of State William F. Galvin's office was forced to add five people into the elections division yesterday to handle the barrage of incoming phone calls from citizens seeking the telephone numbers for their local legislators. Some House and Senate members said privately that they would prefer doing nothing, to avoid political fallout that would result from casting a vote on the issue.

Last year, the SJC issued a similarly broad ruling after the Legislature repeatedly refused to fund the public campaign finance statute known as the Clean Elections Law. In that case, the justices repeatedly implored the Legislature to comply with its decision and either fund or repeal the law. When the Legislature balked, the court ordered the sale of state property to raise money for the law.

"It's clear that the court did not want to go all the way here, but wanted to hand it back to the Legislature," said John Bonifaz, a lawyer in the Clean Elections case. "They won't be satisfied by total silence or a refusal to act. The question is what they consider adequate."

Ross Ozer (left) and his partner, Scott Gortikov, took their 18-month-old son, Sam Ozer-Gortikov, to a celebration of the court ruling last night at the Old South Meeting House. Gortikov proposed marriage to Ozer after hearing of the decision.
(Globe Staff Photo / Matthew J. Lee)

The 2000 Census estimated there were about 19,000 gay couples in Mass., and about 659,000 nationwide, or less than 1 percent of households. Provincetown is the community in Mass. with the highest rate of gay partners, about 15 percent of households.